Month: January 2016

AdvocacyFact investigationLegal skillsLegal writingLitigation

Do you know it when you hear it?

 

When taking a deposition, can you immediately recognize the testimony you want to quote in a later dispositive motion? Do the words jump out at you like a “nugget” in a “treasure hunt”?

Legal writing and nonfiction writing have a lot in common, as a recent New Yorker article by John McPhee suggested. I studied his work in journalism school and continue to follow it more as a hobby than anything strictly related to lawyering. But McPhee’s article on selecting material is very much relevant to what lawyers do in taking depositions and conducting witness examinations to generate powerful, memorable words later used in writing such as motions and briefs.

The article is Omission: Choosing What to Leave Out (September 14, 2015). This post explores his essay and draws some points of contrast with legal writing, before arriving at the real connection to listening, which is the art of the quotation. McPhee is partly a luxury for the novelists disguised as lawyers among us, but here’s the pragmatic sell:

Lawyers who can elicit, recognize, remember, and effectively frame quotations in writing have an advantage in their writing and advocacy just as creative nonfiction writers do. In other words, being an effective listener leads to more persuasive writing and lawyering.

McPhee’s broad point in Omission was to explore the experience and process of cutting his own work and having it cut. From the beginning to the end, “[w]riting is selection”:

Just to start a piece of writing you have to choose one word and only one from more than a million in the language. Now keep going. What is your next word? Your next sentence, paragraph, section, chapter?

And then when the draft is complete, it may need to be cut in order to fit on a magazine page, or just because readers may not persevere through 40,000 words about a topic such as oranges. It’s not surprising that he wrote 40,000 words on oranges because, according to McPhee, the decision to leave something in should be based on whether it is “interesting to you.”

And by “you,” he means the “you” doing the writing, not the hypothetical “you” doing the reading:

At base you have only one criterion: If something interests you, it goes in—if not, it stays out. That’s a crude way to assess things, but it’s all you’ve got. Forget market research. Never market-research your writing. Write on subjects in which you have enough interest on your own to see you through all the stops, starts, hesitations, and other impediments along the way.

This writer-centric view is very different from client-driven legal writing such as trial and appellate advocacy. If you as a lawyer writing on behalf of a client and putting something in because it interests you personally, you may be on the wrong track. In some cases, I’ve seen writers insert comments in their memos and briefs such as “Interestingly, . . . .”

These types of comments are rarely effective. And in that sense, the tenets of good legal writing and good nonfiction writing come back into accord, as McPhee instructs: “If you see yourself prancing around between subject and reader, get lost.”

After exploring these thoughts on how to select material, McPhee narrowed the focus to selecting quotations. He received the following inquiry from a reader:

“I was curious—do you know right away when you hear a quote you want to include in the story, or do you usually mine for it through your notes?”

He responded in part as follows:

Dear Minami—Across my years as a writer and a writing teacher, I have been asked myriad questions about the reporting and compositional process but not before now this basic one of yours. And the answer comes forth without a moment’s contemplation: I know right away when I hear a quote I’ll want to include in the story.

McPhee is a master of weaving themes throughout his writing. (For anyone who likes thinking about themes and structures in writing—such as modifications to the “IRAC” format taught and derided in legal writing—read McPhee’s incredible essay, Structure.)

In the essay on omission, the theme comes back again and again:

Writing is selection.

He doesn’t explicitly mention listening very much, but it runs throughout.

McPhee takes copious notes so he can have lots to choose from later. (In a separate article, Elicitation, he goes into more depth about creating conversational settings for interviews, and how he uses a tape recorder unobtrusively when possible.)

He doesn’t need good notes to recognize a “nugget” in the “treasure hunt” immediately when he hears it.

And he brings affection to his work; about one subject, he says, “I loved just listening to him talk.” The joy McPhee described is perhaps not exactly what a lawyer experiences sitting at the deposition table for hours on end—until that moment of hearing a perfect quote that will ice the dispositive motion. (Forget about the Bluebook;

Forget about the Bluebook; block-quote it for emphasis even if it’s only one word.

That’s a type of joy unto itself.

 

 

 

 

 

CollaborationEmotional intelligenceLaw firm managementLeadershipPeople skills

Mindful interactions with colleagues

Mindfulness and listening go together in a lot of ways, some obvious and some subtle. A recent HBR Blog post, “See Colleagues as They Are, Not as They Were,” challenged readers to be more mindful in working with colleagues, especially longtime colleagues.

The post defines mindfulness as “noticing what is happening in the present moment, without judgment.” And thus the post raised the question: when we interact with colleagues, are we present and mindful of who they are now? Or are we substituting our own mental shortcuts of who they were and what they’ve done in the past? The post encourages readers to “See your colleague as they are today, not how you remember them from yesterday”:

[A]s an experiment, simply notice your colleague afresh. How do they look today? What is their tone of voice? What are their facial expressions? Are they really saying the same old stuff, or is there something new to be heard that you could notice and appreciate?

Noticing colleagues afresh is a challenge. This is partly general human nature: “By the time we have worked with someone for a few months or years, we have developed expectations for what they will say and do.” It’s always been that way, of course.

The ever-present role of email only exacerbates these expectations. The author, Duncan Coombs, describes his findings that email communications reinforce and solidify expectations about coworkers:

I’ve previously written with my good friend and colleague, Darren Good, about the “flash images” we form about people when we see their names in our inboxes. This flash image, based on past experiences, happens before you even read the content of the email, and then influences the way we read the email. While this is a normal part of brain functioning, it has a potentially adverse impact when our negative lens leads to negative interpretations.

I believe the legal workplace suffers from these issues as much as any other industry, and maybe more so (at least in law firms).

An associate does good work, and she builds the “halo effect” around everything she does—whether the work remains stellar or not. Another associate produces a weak assignment or two, and she her billables just start fading away. The effect cuts the other way too: Associates may develop positive expectations about working with a particular partner, which lead them to enjoy the work and do it well. Conversely some partners may engender a sense of existential dread among associates prodded onto their teams. The same effect influences relationships with paralegals, administrative support staff, and legal professionals throughout the firm. And the e-mail “flash image” reinforces all of the above.

Many would say this is far from a problem; in fact it is (a) reality and (b) a good thing.

In a law firm, an associate builds her reputation—for better or worse. Keith Lee wrote about the difference in personal brand (what you say about yourself) and reputation (what others say about you) . The work inside a law firm flows toward the individual lawyers with strong reputations, and away from others. Individual lawyers’ reputations are important because they contribute to (or detract from) the overall health of the law firm.

This is true in any business of course, but the competitive reality of law practice and the pessimistic mindset of lawyers may exacerbate it. As one lawyer stated to Law360 in giving advice and admonitions to new associates, “what takes years and hard work to build can be lost in a second with one bad decision or lapse of judgment.”

I don’t think the HBR post is arguing against a lawyer’s earned reputation and its deserved effects. Nor am I, here in this post.

I think the post is digging into the process of how a reputation happens in the first place. If a reputation comes about from non-mindful, even lazy mental shortcuts of others based on insufficient, incomplete, or inaccurate information, reputation is not only not a good thing but actually bad or at least far from optimal. Consequences that come to mind include frustrated individual working relationships that result in less accurate information, less effective distributions of work, wastefully “writing off” legal professionals despite achievements and potential, and shrinking or illusory opportunities for professional development.

Is working with someone for “a few months” enough to accurately define that person’s capabilities and, accordingly, their reputation? Even if a working relationship has lasted years, could a person actually change?

These questions open up numerous discussions on assessment and evaluation, as well as a “growth” or “fixed” mindset about human capacity, with implications too big for one post. At the individual level, the HBR post goes on to some positive recommendations for interacting more mindfully with colleagues:

As an experiment, consciously seek to notice something positive about the person. What is one thing about this person that you appreciate? What is one thing they say that is helpful? What is their contribution to the organization? What is their single greatest strength? Focus on that and pay total attention to that one thing. Hold that focus and make that your first “foothold” on the path to an improved relationship.

These are recommendations that some skeptical lawyers may find naive. Supervisors who complete and sign semi-annual evaluations simply don’t need to make this effort. There’s a path of less resistance: directing their work and their time to other associates and legal professionals where the positive reactions come more easily and naturally. (Thus it’s very good advice for new attorneys to treat partners like clients from day one, and try to avoid this situation in the first place.)

But for attorneys and legal professionals who are committed to—or stuck in—working arrangement for some time, this positive advice may be helpful to frame more mindful, constructive interactions.


For more on mindfulness, see the work of Jeena Cho. Her book, The Anxious Lawyer, will be coming out this year. Her course on “Better Lawyering through Mindfulness” touches on mindful listening and many other topics. She writes for Above the Law.

This article originally from the Vermont Bar Journal and now posted on the Ohio Supreme Court’s website also touches on themes of mindfulness in interacting with others.

Emotional intelligenceLaw firm marketingLaw practiceLegal communicationPeople skills

Resolution: Delight them

Delight your clients.

That’s a good New Year’s Resolution for lawyers, right?

It’s an entrenched, almost clichéd piece of general business advice. But should lawyers try to delight their clients? It seems like the answer should be “of course!!” But what does that even mean?

A recent reference to delighting the client prompted this post, “3 Vital Mindsets for Creating Impact for the Legal Industry” by Seyfarth Shaw’s Laura Maecthlen on Medium. She reflected back on her hectic law practice in the final month of 2015, when she wasn’t thinking broadly about the legal industry but rather working away with depositions, negotiations, and a lot of detailed, focused, specifically client-centered work.

This day-to-day level of law practice, Maecthlen suggested, is an under-appreciated source of ideas about legal innovation. Those ideas should come not only from large-scale abstract thinking about the legal industry, but also from “the everyday activities of working lawyers . . . in the trenches of our legal system every day.” As she wrote,

It is in this spacepersonal, one-on-one and face-to-facethat we create real change for ourselves and each other.

And this observation—essentially, “small is the new big”—leads to the question of delight:

With all the talk of innovation in our industry, a person could easily lose track of the real goal of innovation, which is to create positive impact. If you stop to consider what we as practitioners are trying to accomplish, you realize it’s simple: higher-value client solutions aimed to delight our clients. Innovation is only one means to achieve this.

What do others say about delighting clients in the legal industry?

On a positive note, legal marketer Merrilyn Astin Tarlton advised lawyers to surprise and delight their clients in several ways. Drop in on their clients, free of charge, and learn more about their business. (This is common but excellent advice.) Give compliments. Help clients see patterns and prevent those patterns from occurring, such as better training and policies to reduce a pattern of lawsuits. Over-deliver and deliver early, rather than setting suggested deadlines and then meeting them just barely or missing them. Say thank you, often.

But the delight concept often comes wrapped in some more ominous tones.

Non-delighted clients are less likely to be long-term clients, and many lawyers are deluded about their clients’ level of delight. That was a theme developed by lawyer and and knowledge-management consultant V. Mary Abraham interviewed legal leadership consultant Susan Hackett. The post is “Focus on Clients; If You Delight Them They Will Stay.” Hackett’s work shows that 85 percent of outside counsel give themselves an “A” for their work, but only 35 percent of in-house counsel would in fact recommend their outside counsel to other clients.

What can lawyers do to climb into that 35 percent—to get that “A” grade and make the client “fall in love” with their services? One big step has to do with listening, with two necessary sub-parts to make it work. Part one is about asking meaningful questions of clients:

The very best way to deliver value to each client you serve is simply to ask them what it is that they value, what it is that you’re doing right or could do better, what it is that other lawyers or service providers offer them that makes them pleased with the service, and how it is that you personally could improve.  Ask it in person, ask it in surveys, ask it outside the course of matters, ask it during the matters on which you’re serving. Saying once a year over dinner, `so how are we doing?’ is going to get an answer as specific as `just great.’  Trust me, that’s not the feedback you need.

And part two is about listening to and doing something about that feedback:

Asking for feedback is not the same thing as acting on it.  Too many of us ask for feedback and then we sit back and `admire’ (or ignore) the results. Instead, we need to take actions that allow us to improve from the feedback.  If you receive positive feedback, look for ways to apply the principles underlying your success to other kinds of work. At a minimum, when the evaluations relate to performance, include them in the performance reviews of those involved. After all, if lawyers’ compensation and advancement are only tied to the number of hours they’ve billed, and not to how well they serve clients, we’re all in trouble.

Delight also came up in the context of “in-house counsel gripes” which is practically its own genre of posts on Law 360. Rich Baer, then of Qwest Communications and now Liberty Media, urged lawyers to borrow the delight aspiration from non-legal businesses:

When you’re thinking about client service, don’t think like a lawyer, think like the owner of a great restaurant or the manager of a wonderful resort and really strive to delight your client every time you’re dealing with them.”

While this statement itself is positive, the rest of the post (which quoted other in-house counsel as well) essentially bludgeoned the reader with what not to do. Don’t surprise the client, don’t max out bills, and don’t send 50-page memos when short e-mails can give the same information. (The post also quoted Baer criticizing outside counsel who fail to share a “simple thank you for the business”—the mirror-image of Tarlton’s advice to say thank you often.)

Thinking about what not to do brings us back to the business theory of whether delight should be a client service goal at all. If you search “delighting customers,” the top result is a Harvard Business Review piece urging the opposite: “Stop trying to delight your customers.”

The article argued that the vast majority of decisions are made not because someone is delighted and drawn to the amazing service of a business. Rather, these decisions are made because of being annoyed, put off, frustrated, and otherwise subject to terrible service. Customers have the impulse to “punish bad service” much more so than to “reward delightful service.” (This idea is rooted in psychological studies that “Bad Is Stronger than Good” previously discussed on the blog here.)

Therefore, the HBR piece argues, the better approach to customer satisfaction is not delight but “reducing their effort—the work they must do to get their problem solved.”

In her post on goals for 2016, Seyfarth Shaw’s Maecthlen was onto this as well. She urged finding clients’ “pain points” and making “process improvements” to address them. (This rhetoric is consistent with the legal project management movement that sometimes speaks in the language of delight.)

Addressing pain and process comes up in so many different ways. Many process improvements are substantive, like the suggestion above about recognizing and mitigating a pattern of small sporadic lawsuits. Of course the method of communication itself may be a pain point as well.

Here, as I write on a Friday afternoon, a small but specific example comes to mind. Some clients may not enjoy receiving a barrage of legal updates late Friday afternoon as lawyers clean and close their own inboxes. The lawyer may feel a sense of respite and reprieve, while the client now has a list of things to do just at the beginning of the weekend. Other clients may appreciate a regular consolidated end-of-the-week update. What is their preference?

Asking what they want and respecting that preference is not all that innovative. But, to paraphrase Laura Maechtlen, it’s this one-on-one and face-to-face work that can—perhaps—add up to a sense of delight.